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In The Supreme Court of Nigeria

On Friday, 13th day of July 1990  

SC 165/1987

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

Olajide Olatawura

......

Justice, Supreme Court

 

  

Between

   

Simeon O. Ihezukwu

.......

Appellant

 

 

And   

 

University of Jos

The Vice-Chancellor, University of Jos

The Registrar, University of Jos

.......

Respondents

   

Judgment of the Court

Delivered by

Wali. J.S.C.

 

On the 29th May, 1990 after hearing learned counsel for the appellant in elaboration of the brief of argument he has already filed, this court decided not to call upon learned counsel for the respondents and summarily dismissed the appeal with N500.00 costs to the respondents, reserving the reasons for doing so today, the 13th day of July, 1990. I shall now proceed to state the reasons.

 

By a Writ of Summons filed in the High Court of Benue State of Nigeria, Makurdi Judicial Division, the appellant/plaintiff claims the following reliefs against the respondents/defendants -

 

1     A declaration that the plaintiff is still the Higher Executive Officer (Accounts) of the first defendant.

2.     Payment to the plaintiff by the defendants the sum of N562.00 (five hundred and sixty two Naira) being the monthly salary of the plaintiff from August. 1982 till this case is determined.

3.     Payment by the defendants to the plaintiff the sum of Nl5,000.00 (fifteen thousand Naira) being the values of the plaintiff's two vehicles which the defendants illegally and wrong-fully seized and appropriated for their own use.

4.     The sum of N110 (one hundred and ten Naira) being the average monthly earnings and/or use of the two vehicles from the 4th of August, 1982 till judgment is given in this case.

5.     The sum of N10,000.00 being general damages for wrongful termination of appointment.

 

The claims were denied by the respondents. Pleadings were ordered, filed and exchanged and issues joined.

 

Appellant/plaintiff gave evidence but called no witnesses while the respondents/defendants called three witnesses. Learned counsel for the appellant/plaintiff and respondents/defendants addressed the court. In a considered judgment delivered by the learned trial Judge, Ogebe, J., he made the following findings:-

 

Exhibit 1 which is the letter of offer of appointment to the plaintiff requires that if the plaintiff's appointment was not confirmed at the end of the two years probationary period, he was entitled to three months notice or salary in lieu of notice …………

 

I am, therefore, unable to accept the submission of the learned counsel for the defendants that one month's salary in lieu of notice given to the plaintiff in Exhibit 3 was reasonable and in accord with the regulations binding the plaintiff's employment. I hold that in so far as the plaintiff was not given sufficient notice before his appointment was terminated, the termination was not lawful and he is entitled to damages for wrongful termination of appointment ....................

 

 

To my mind, the only fault with the defendants was their failure to give the plaintiff three months notice or salary in lieu of notice.  In such a situation, the plaintiff is only entitled to what he should have earned during that period and no more. …………..

 

In the result, I award the plaintiff damages of N1,686.00 being three months' salary in lieu of notice.

 

As for the Datsun Mini Bus. clause 8(a) of the Loan Agreement is relevant.... Clause 8(a) gave the defendants the right to terminate the agreement and retake possession of the vehicle and it is therefore my view that in seizing the Mini Bus, the University was exercising its rights under the agreement between it and the plaintiff and no damage can accrue from that.

 

The defendants in their defence testified that the Volkswagen beetle car was seized because the plaintiff was owing the University some money namely the vehicle loan and the losses incurred by the University for which they held the plaintiff responsible. Mr. Ogbole, the learned counsel for the defendants was unable to show me any lawful authority for the detention of the plaintiff's Volkswagen car. The plaintiff bought this vehicle before he joined the University and the defendants have no right whatsoever to seize it from him without lawful authority." Having made the findings above, the learned trial Judge concluded -

 

It is, therefore, ordered that the defendants shall pay the plaintiff N2,000.00 damages for detinue and shall release the Volkswagen beetle car to the plaintiff forthwith. In the result, the plaintiff is awarded total damages of N3,686.00 for wrongful termination of appointment and detinue.

 

The facts involved in the case are simply thus -

The plaintiff was employed as Higher Executive Officer (Accounts) by the defendants, the University of Jos, Makurdi Campus when it was Federal University of Technology, Makurdi, by a letter of appointment (Exhibit 1) dated 22nd April, 1981. In paragraph 6 of Exhibit 1 the appointment was for a probationary period of two years in the first instance and if same was not confirmed at the end of the period, it would be terminated by three months notice or payment in lieu thereof. In a letter dated 4th June, 1982 (Exhibit 2) plaintiff was suspended from office. This was followed by another letter dated 2nd August, 1982 (Exhibit 3) formally terminating his appointment with one month's salary in lieu of notice.

 

When the plaintiff was appointed, he was granted a car loan of N4,000.00 by the defendants with which he purchased a Datsun C20 Mini Bus. The loan was to be repaid by monthly installments to be deducted from his salary. As the loan was not repaid in full when the plaintiff's appointment was terminated, the Mini Bus and another Volkswagen car belonging to the plaintiff were seized by the defendants.

 

From now, both the plaintiff and the defendants will be referred to as the appellant and the respondents respectively.

 

The appellant was not satisfied with the judgment of the trial court against which he appealed to the Court of Appeal, Jos Division. In a unanimous judgment of that court delivered by Agbaje, J.C.A. (as he then was), he allowed the appeal in part and concluded –

 

In my judgment therefore, since the appellant, the plaintiff in the lower court, had succeeded, even partially in his case, he is entitled to his costs in the lower court. According to the brief of argument in this case, the out-of-pocket expenses of the appellant in the lower court was N302.50. Taking all the circumstances of the case, including the fact that the respondents' counter-claim was struck out, I award the appellant the costs of N600.00 in the lower court. In this court since the appellant has also succeeded partially, I award him costs of N200.00 against the respondents.

 

In my judgment therefore, I find in favour of the judgment A of the lower court in refusing to grant the declaration that the appellant is still a higher executive officer of the 1st respondent. I set aside the judgment of the lower court holding that the seizure of the appellant's Mini Bus by the respondents was right, and thereby dismissing the appellant's claim for conversion in this regard. In its place, I enter judgment for the appellant against the respondents for N4,466.72 in this regard. I award the appellant costs of this appeal and costs in the lower court which I assess at N200.00 and N600.00 respectively against the respondents."

 

The judgment of the Court of Appeal is now being challenged on appeal by the appellant.

 

Learned counsel for both the appellant and the respondents filed and exchanged briefs. After listening to learned counsel for the appellant's oral submissions in elaboration of issues 2 and 3 formulated in his brief, the appeal was dismissed without calling upon learned counsel for the respondents.

 

It is pertinent to state here that issue No.1 in the appellant's brief of argument was abandoned and accordingly struck out. The two remaining issues are -

 

ISSUE TWO

Whether the Court of Appeal was right in law in introducing the issue of confirmation of appointment of the appellant when same was neither raised in the pleadings nor argued before the court, Ground A of the Notice of Appeal.

 

ISSUE THREE

Whether the learned Court of Appeal was right in holding that the decision in the Olaniyan's case will not apply to the appellant and so refused to declare that the plaintiff is still the Higher Executive Officer (Accounts) of the first defendant and that he should be paid his salaries from the date of the purported F dismissal till the date his case is determined in the Supreme Court. Grounds A & B of the Notice and grounds of appeal.  

 

On Issue No.2, it was the submission of learned counsel that neither in the pleadings nor in the evidence did parties join issue on whether the appellant was a confirmed officer or not. the issue was not raised in the High Court and that the parties did not raise it in the Court of Appeal. He therefore submitted that the Court of Appeal was in error in raising the issue suo motu and without inviting counsel on both sides to address it on the same. He relied on Dilibe & Ors. v. Nwakozor (1986) 5 NWLR (Pt.41) 315.

 

As for Issue No.3, it was the submission of learned counsel that since the contract between the appellant and the respondents was for two years, it could not be determined within ~he said two years. It could only be determined at the expiration of the two-year probationary period by giving the H appellant's three months notice. He cited the following cases in support -Gunton v. London Borough of Richmond Upon Thames (1980)1 All E.R. 580 at p.582; D. 0. Ewerami v. A. C.B. Ltd. (1978)4 S.C.99 at 109; De Stempel v. Dunkels (1938)1 All E.R. 238 at 252; Eyutchae v. N. T.A. (1986)5 NWLR (Pt.41) 395; Shitta-Bey V. F. P. S. C. (1981)1 S.C.40; Garba v. University of Maiduguri (1986)1 NWLR (Pt. 18)550 and Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt.9) 599

 

In reply to the submissions (supra), it was the contention of learned counsel for the respondents that learned counsel for the appellant in the Court of Appeal had raised the issue of the appellant's nature of appointment by placing 'much reliance on Olaniyan's case" and he had also "at the same time conceded that the appellant's appointment had not been confirmed as at the date of his termination, and that the length of notice to terminate his appointment is three months." He submitted that the Court of Appeal was perfectly in order in considering and distinguishing the case of Olaniyan (supra) from the facts and circumstances of this case which are dissimilar. It was his further submission that Exhibit 1, the document containing the terms and nature of the appellant's employment must be strictly construed in the light of the terms agreed to by the parties. He cited the following cases to buttress his submissions - Niger Dams v. Lajide (1973)5 S.C.207 and Olaniyan & 2 Ors. v. University of Lagos & J Or. (1985)2 NWLR (Pt.9) 599.

 

Under issue No.2, appellant's counsel complained that the Court of Appeal was wrong in raising and deciding suo motu the issue of the confirmation of the appellant's appointment when this was neither raised in the pleadings nor canvassed before the court.

The main purpose of filing pleadings is -

 

(a)   to ascertain the 'various matters actually in dispute between the parties and those in which there is agreement between them.,

(b)   to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them, 

(c)    to provide a brief summary of the case of each party which is readily available for reference and from which the nature of the claim and defence may be easily apprehended, and to constitute a permanent record on the questions raised in the action and the issues decided therein in order to prevent future litigation upon such matters and issues already adjudicated between the parties.

See page 5 Bullen and Leake (Eleventh Edition).

 

In paragraphs 4, 19 and 20 of the appellant's statement of claims, the following facts were pleaded -

 

4.      On the 22nd of April, 1981 the defendants employed the plaintiff as Higher Executive Officer (Accounts). The terms of his employment were contained in a letter ref. No. R.UT/P/38 of 22/4/82. This shall be relied and founded upon at the hearing of this case.

19.    On 2/8/82 by letter reference No.R/FUTPF/38/5 the defendants purported to terminate the appointment of the plaintiff.

20.    This letter was contrary to the express terms of the contract agreement between the plaintiff and the first defendant. The defendants failed to report the incident to the police for investigation. Rather they took the law into their own hands.

 

The averments in paragraphs 4 and 19 were admitted by the respondents while issue was joined on paragraph 20 of the statement of claim see paragraphs 1, 3 and 6 of the statement of defence.

 

Exhibit 1 which is the contract of employment, was specifically pleaded by the appellant and same was admitted in evidence through the appellant. In his address on conclusion of the appellant's evidence, learned counsel specifically referred to paragraph 6 of Exhibit 1 to buttress his submission that the appellant's appointment can only be terminated on three months' notice or 3 months' salary in lieu thereof. In that paragraph, it is specifically provided as a term of the contract that –

 

The appointment will be for a probationary period of two years in the first instance after which it will be to the retiring age of 60 years if it is confirmed.

 

The nature of the appellant's appointment to wit - whether it was probationary or permanent was therefore in my view raised in the pleadings and canvassed in the High Court.

 

Learned counsel also argued and submitted that the issue of the nature of the appellant's appointment was not raised by either parties in their respective briefs filed in the Court of Appeal. I have not been afforded the opportunity of seeing the brief of arguments filed in the Court of Appeal as these were not made part of the record by the appellant as is required of him by Order 7 Rule 2(1) of the Supreme Court Rules, 1985. That notwithstanding, reading Grounds A and B, of the Grounds of Appeal which were canvassed in the Court of Appeal it would not be difficult to comprehend that the nature of the appellant's appointment at the time his appointment was purportedly terminated was made an issue therein.

 

This ground of appeal (and the issue related to it) is misconceived. It fails and is accordingly dismissed. The next issue is whether following the wrongful termination of the appellant's appointment as found by both the trial court and the Court of Appeal, the appellant is entitled to be reinstated and that he could only be subsequently properly terminated at the expiration of the two-year probationary period.

 

Learned counsel on both sides cited and relied on decided cases with reference to the construction of Exhibit 1, particularly the celebrated case of C.I.O. Olaniyan & Ors. v. Unilag Council (1985)1 All NLR 314; (1985) 2 NWLR (Pt.9) 599. I am of the opinion that the only principle derived from that case is that the contract is to be construed in accordance with its express terms and that no term is to be implied which is not rendered reasonably necessary to carry out the main intention of the parties. In accordance with this principle it seems to me impossible to imply a term that the appellant's appointment can only be determined by a three months' notice on the expiration of the two-year probationary period failing which he is entitled to be declared that he is still in the respondents' service. As the learned trial Judge found, which finding was subsequently affirmed by the Court of Appeal, the respondents are entitled to terminate the appellant's employment anytime during or on the expiration of the two-year probationary period, subject to the stipulation in paragraph 6 of Exhibit 1 part of which provides that –

 

The appointment will be for a probationary period of two years in the first instance after which it will be to the retiring age of 60 years if confirmed. If the appointment is not confirmed at the end of the period, it will be terminated by three months' notice or payment in lieu."

 

The case of Olanjyan's (supra) is strictly decided along this principle. The appellants in Olaniyan's case are on permanent and pensionable appointment of the University and therefore governed by their Memorandum of Appointment, by Regulations governing Service in the University and the Statutory Provisions of the University of Lagos Act, No.3 of 1967. These were specifically pleaded and put in evidence. In construing the Memorandum of appointment - Exhibits p.1, p.18 and p.12A Oputa, J.S.C., delivering the lead judgment of this court said at p.331 –

 

In any event, the learned trial Judge held that the appellants were holders of permanent office with legal status in the established pensionable cadre of the University of Lagos and are entitled to remain in the office until they attain the retiring age or until they are properly removed. (Italics mine).

 

From the passage quoted supra, it is clear that there are two ways of terminating the appellants' appointment involved in Olaniyan's case –

 

(1)   When they reach the retiring age of 60 as they are officers on permanent and pensionable appointment.

(2)   When they are properly terminated by following the necessary procedure governing their condition of service i.e. Memorandum of appointment and the relevant sections of the University Act.

 

Are the facts in the appellant's case on all fours with those in Olaniyan's? My answer is in the negative for the following –

 

(1)    The appellant was not on permanent and pensionable cadre of the University but on probationary (or trial) appointment for two years.

(2)   The Conditions of Service and Regulations mentioned in paragraph 6 of Exhibit 1 were not put in evidence by the appellant for the trial court to see.

 

In the instant case, Exhibit 1 save for providing that the respondents can terminate the appellant's employment on giving him 3 months' notice or payment of 3 months salary in lieu, it is silent as regards the circumstances in which the power can be exercised. In my view, it can reasonably be implied as a term of the contract that the power to terminate the appointment of the appellant by the respondents can be exercised on grounds of say, ill-health, incompetence, misconduct, dishonesty, exigencies of service or such other similar grounds. The mere fact that the appellant was given a probationary appointment for two years, does not mean and nor could it be implied that his appointment cannot be lawfully terminated within the probationary period on reasonable notice -see Ward v. Barclay Perkins & Co. Ltd. (1939) 1 All E.R. 287 and Para. 3606 of Vol.II–Chitty on Contract [24th Edition].

 

The essence of a probationary appointment is that the employer retains the right not to confirm the appointment until after a specified period. Where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, this does not give the employee a legal right to be employed for that length of time and the employer may lawfully dismiss him before the expiry of that period.

 

Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract, regardless of whether the appointment is on permanent or probationary (temporary) basis.

 

It is therefore my conclusion that both the trial court and the Court of Appeal were right when they refused to reinstate the appellant. The normal measure of damages recoverable by an employee whose contract has been wrongly terminated is the amount he would have earned under the contract for the period until the employer could have lawfully terminated it, less any amount he could reasonably be expected to earn in other employment. But where the employer has a right to terminate the contract before the expiry of the term (as in the instant case) damages should be assessed only up to the earliest time at which the employer could validly have terminated the contract -

 

See British Guiana Credit Corporation v. Da Silva (1965)1 WLR 248 and also para. 3636 of Chitty on Contract, Vol.11 [24th Edition].

 

In my view the termination of the appointment of the appellant by payment of one month's salary in lieu of notice was not in consonance with Exhibit 1. This would not however entitle him to be reinstated when the appointment was basically temporary i.e. it was on probation for two years. He was however entitled to three months' salary in lieu of proper notice as provided in Exhibit 1. In that regard, I endorse the conclusion of Aghaje, J.C.A. (as he then was) that –

 

……..the appellant's case will have to be decided according to the terms of the contract between him and the respondents. Exhibit '1' contains the terms of the contract between the appellant and the respondents, including the mode of terminating the appointment.

 

It appears to be common ground in this case, that, according to the terms of the agreement between the appellant and the respondents, the respondents could validly terminate his appointment by giving the appellant three months' notice of the termination of that appointment or in lieu thereof, three months' salary.

 

The appeal fails and it is dismissed. The judgment of the Court of Appeal is affirmed.

 

Judgment delivered by

Obaseki. J.S.C.

 

On the 29th day of May, 1990, 1 dismissed this appeal after reading the briefs filed by the parties together with the proceedings and judgments of the courts below and hearing the further submissions of counsel in oral arguments at the oral hearing. I dismissed the appeal with N500.00 costs to the respondents reserving my reasons for the judgment till today. I now proceed to give them.

 

Proceedings in this matter began in the High Court of Benue State, Makurdi Judicial Division with the filing by the appellant of a writ of summons having endorsed thereon against the defendant/respondent, a claim for:

 

1.     A declaration that the plaintiff is still the Higher Executive officer (Accounts) of the first defendant;

2.     Payment to the plaintiff by the defendants the sum of N562.00 (five hundred and sixty-two Naira) being the monthly salary of the plaintiff from August, 1982 till this case is determined.

3.     Payment by the defendants to the plaintiff the sum of N15,000.00 (fifteen thousand Naira) being the value of the plaintiffs two vehicles which the defendants illegally and wrongfully seized and appropriated for their own use.

4.     The sum of N110.00 (one hundred and ten Naira) being the average monthly earnings and/or use of the two vehicles from the 4th of August, 1982 till judgment is given in this case.

5.     The sum of N10,000.00 being general damages for wrongful termination of appointment.

 

The issues joined came up for trial before Ogebe, J. and after hearing evidence and addresses of counsel, held that as the plaintiff was not given sufficient notice (only one month's notice or salary in lieu of notice was given) before his appointment was terminated, the termination was not lawful and the plaintiff was entitled to damages for wrongful termination of appointment.

 

The learned trial Judge awarded the plaintiff N1,686.00 being three months salary in lieu of notice. He rejected the claim for the value of the Datsun Mini Bus on the ground that by virtue of Clause 8(a) of the Loan Agreement the defendant had a right to retake possession of the vehicle. As for the Volkswagen beetle car, the learned trial Judge held that the defendants had no right whatever to seize it from the plaintiff and awarded N2000 for detinue. He thereafter ordered the release of the Volkswagen beetle car to the plaintiff.

 

Dissatisfied, the plaintiff appealed to the Court of Appeal. The Court of Appeal allowed the appeal against the judgment with regard to the costs awarded by the High Court and the refusal of the claim for damages for the wrongful seizure of the Minibus. The decision of the High Court in respect of these were set aside. In respect of the minibus, judgment was entered for the plaintiff/appellant in the sum of N4,466.72.

 

On the issue of costs, the sum of N600.00 was awarded as costs in the High Court and N200.00 as costs in the Court of. Appeal.

 

The appeal against the refusal of the claim for declaration was dismissed. Still dissatisfied, the plaintiff/appellant then appealed to this court. Two issues were canvassed before us. They are:

 

1.     whether the Court of Appeal was right in law in introducing the issue of confirmation of appointment of the appellant when same was neither raised in the pleadings nor argue before the court;

2.     whether the learned Court of Appeal was right in holding that the decision in Olaniyan's case will not apply to the appellant and in refusing to declare that the plaintiff is still the Higher Executive Officer (Accounts) of the first defendant and that he should be paid his salaries from the date of the purported dismissal till the date his case is determined in the Supreme Court.

 

My learned brother, Wali, J,S.C. has examined these issues in detail and I agree with his opinions on them. The issue of confirmation of appointment is paramount and cannot be ignored or overlooked in the consideration of the terms of the contract of employment and the status of the plaintiff. Further the claim for declaration that he was still the Executive Officer (Accounts) of the first defendant cannot be determined without a consideration of the issue.

 

The contention of appellant's counsel that the appointment of the appellant cannot be terminated until the appointment was confirmed has no basis in law or fact. It is a wrong interpretation of the relevant clause of the agreement of employment. An unconfirmed employee does not enjoy the permanence of employment which a confirmed employee enjoys. Thus, the term of the contract that

 

the appointment will be for a probationary period of two years in the first instance after which it will be to the retiring age of 60 years if it is confirmed

 

highlighted the important difference. The further clause in the agreement Exhibit 1 paragraph 6 which reads:

 

If the appointment is not confirmed at the end of the period (of D probation), it will be terminated by three months notice or payment in lieu

 

means that the employment can be terminated by 3 months notice of termination or 3 months salary in lieu. It does not mean that the 1st defendant, an employer, who has good cause to terminate the employment of the plaintiff, must wait till the end of the probationary period before giving notice of termination. As misconduct is a ground for termination of contract of employment, that clause (which could have been more elegantly framed) would not save the employment of an employee guilty of misconduct neither will it tie the hands of the 1st defendant when there is no good cause why the employment should continue.

 

It was for the above reasons and those set out in the Reasons for Judgment delivered by my learned brother, Wali, J.S.C. that I dismissed the appeal.

 

Judgment delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of reading the reasons for judgment of my learned brother, A. B. Wali, J.S.C. in this appeal, I agree entirely with them. I do not consider it necessary to repeat the reasons so ably articulated in the judgment of my learned brother Wali, J.S.C.

 

I therefore adopt them as my own for dismissing the appeal of the appellant summarily on the 29th May, 1990.

 

Judgment delivered by

Belgore. J.S.C.

 

I had a preview of the judgment of my learned brother, Wali, J.S.C. and I am in complete agreement with his reasoning and conclusions. I have nothing more useful to add in adopting the judgment, as mine and dismissing this appeal with the same consequential orders.

 

Judgment delivered by

Olatawura. J.S.C.

 

I had a preview of the judgment just delivered by my learned brother, Wali, J.S.C., I agree with his reasoning and conclusions.

 

On 29th May after reading the record of appeal, the briefs filed by the appellant and respondents and after listening to the learned counsel for the appellant, I dismissed the appeal and reserved my reasons till today. I now give my reasons.

 

The appellant who was the plaintiff sued the defendants who are now the respondents in this court. In his indorsed Writ of Summons issued in the Makurdi Judicial Division of the High Court of Benue State he claimed as follows:-

 

1.     A declaration that the plaintiff is still the Higher Executive Officer (Accounts) of the first defendant.

2.     Payment to the plaintiff by the defendants the sum of N62.00 (Five Hundred and Sixty-Two Naira) being the monthly salary of the plaintiff from August 1982 till this case is determined.

3.     Payment by the defendants to the plaintiff the sum of N15,000.00 (Fifteen Thousand Naira) being the values of the plaintiffs two vehicles which the defendants illegally and wrongfully seized and appropriated for their own use.

4.     The sum of N110.00 (One Hundred and Ten Naira) being the average monthly earnings and/or use of the two vehicles from the 4th of August, 1982 till judgment is given in this case.

5.     The sum of N10,000.00 being general damages for wrongful termination of appointment.

 

Pleadings were ordered, filed and delivered. The facts relied upon by the appellant during the trial were briefly as follows:

 

In June, 1981 the appellant was employed by the 1st respondent as Higher Executive officer (Accounts). His letter of appointment dated 22/4/81 which contains the terms of the employment was admitted in evidence as Exhibit 1. Barely a year after his employment the Bursary Department of the University was burgled and a sum of N4,760.50 was stolen. As a result of this, his appointment was suspended as per Exhibit 2.An inquiry was set up to investigate the incident of burglary, he was one of those interviewed by the panel. As a result of the recommendations made by the panel, his appointment was terminated on 2nd August 1982 as ordered by the letter of the same date admitted in evidence and marked as Exhibit 3. On 4th August 1982 his two cars; a Volkswagen registration No.AN 4543 EA and Datsun C20 Minibus registration No.BN 3548 MA were impounded. According to the appellant he took a loan from the respondents to purchase the Datsun Minibus. He however bought Volkswagen car personally. The appellant gave evidence and closed his case. As at the time he gave evidence the respondents were neither in court nor represented. The trial Judge adjourned

 

However before the judgment was delivered, the respondents filed an application to arrest the judgment praying the court to recall the appellant so as to cross-examine him and also to prove their case. The application partially succeeded in that the respondents were only allowed to defend themselves. They called evidence in support of their statement of defence. The A counter-claim was struck out.

 

The learned trial Judge Ogebe, J. on 12th July, 1985 gave judgment in favour of the appellant as follows:

 

It is therefore ordered that the defendants shall pay the plaintiff N2,000.00 damages for detinue and shall release the Volkswagen Beetle car to the plaintiff forthwith. In the result, the plaintiff is awarded total damages of N3,686.00 for wrongful termination of appointment and detinue.

 

The plaintiff was dissatisfied with that judgment and appealed to the Court of Appeal, Jos Division. The appeal succeeded in part. The appellant who was dissatisfied with the judgment of the Court of Appeal has now appealed to this court seeking reliefs in items 1 and 2 of his indorsed writ of summons already set out. The two grounds of appeal filed against the judgment of the lower court without the particulars are:

 

ERROR IN LAW:

The learned Court of Appeal Judges erred in law when they held that "In the case in hand, the appellant was still on probation at the time his appointment was terminated. He had not acquired the status of a confirmed officer in the service of the respondents. So, the decision in the OLANIYAN'S case will not apply to him."

ERROR IN LAW: 

The learned Court of Appeal Judges erred in law where they held that "The conclusion I reach therefore is that I cannot find any justifiable ground to disrupt the finding of the learned trial Judge not to reinstate the plaintiff in his former position.

 

Prince Nsofor the learned counsel for the appellant filed the appellant's brief dated 2nd November, 1987 on 6th November, 1987. In the course of his argument he sought leave to amend the brief by deleting issue No.1 and also the argument in paragraph 3.00 on pages 8 to 11 thereby confining himself to issues 1 and 3. The remaining two issues therefore are:

 

(1)    Whether the Court of Appeal was right in law in introducing the issue of confirmation of appointment of the appellant when the same was neither raised in the pleadings nor argued before the court. Ground 4 of the Notice of Appeal.

(2)    Whether the learned Court of Appeal (sic) was right in holding that the decision in Olaniyan's case will not apply to the appellant and so refused to declare that the plaintiff is still the Higher Executive Officer (Accounts) of the first defendant and that he should be paid his salaries from the date of the purported dismissal till the date his case is determined in the Supreme Court. Grounds A & B of the Notice and Grounds of Appeal.

 

Suffice it to say the respondent's brief was filed on 10th November, 1988. In his submissions in amplification of the appellant's brief, Prince Nsofor, the learned counsel for the appellant, rightly submitted in my view, that the appeal depends on the construction to be placed on Exhibit 1 i.e. the letter of appointment. He again rightly pointed out that the appellant appointment was not confirmed before his appointment was terminated. It was his submission that the appellant's appointment could not have been terminated within the probationary period. He referred to Exhibit 3 - the letter of termination of the appointment, which was issued within the probationary period. He finally urged that the appeal be allowed. We did not call on the respondent's counsel for a reply. Since the appointment of the appellant was based on Exhibit 1, the conditions of appointment as laid down in it will decide the appellant's contention as formulated in his brief. In the course of his argument, Prince Nsofor relied on paragraph 6 of the letter. It is not disputed that the appellant's appointment was terminated during the probationary period. This appeal will depend on the interpretation and or construction of paragraph 6 of Exhibit 1. This paragraph reads as follows:

 

6.    The commencement and termination of the appointment will be governed by the provisions of the Regulations referred to above. The appointment will be for a period of two years in the first instance after which it will be to the retiring age of 60 if it is confirmed. If the appointment is not confirmed at the end of this period, it will be terminated by three months' notice or payment in lieu.

 

It appears to me a startling proposition of law that during a probationary period an employer has no right to terminate the appointment of the employee not withstanding the breach of the terms of his appointment or has done anything contrary to the interest of his Employer. The sole purpose of putting an employee on probation is to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment. Probationary period is a period of observation by the employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with an employee cannot justifiably complain: Olayinka Kusamotu v. Wemabod Estate Ltd. (1976)11 S.C.279.

 

The court of trial and the lower court agreed that the appointment was wrongly terminated due to lack of sufficient notice laid down in paragraph 6 of the Exhibit 1 (already reproduced) above. It is therefore a misapplication of OLANIYAN'S case to say that there is no difference between the case of an officer on probation and a confirmed officer with regard to their entitlements or rights. Either has separate rules or regulations governing the case of an officer on probation as distinct from a confirmed officer. What the Court of Appeal did was to highlight the difference between the terms of employment in respect of officers on probation and confirmed officers. I therefore agree with Agbaje, J.C.A. (as he then was) when he said:

 

In the case in hand, the appellant was still on probation at the time his appointment was terminated. He had not acquired the statue of a confirmed officer in the Service of the respondents. So, the decision in the OLANJYAN'S case will have to be decided according to the terms of the contract between him and respondents.

 

An officer who complains of a wrongful termination of appointment during a probationary period cannot be heard to say that the court has no right in discussing conditions of service of a confirmed officer when the court referred to a decision on a confirmed officer so as to bring into focus the difference in the line of approach by the court in respect of the two categories of officers. The appellant wanted to claim the rights of a confirmed officer.

 

The second issue raised by the appellant flows from the first issue already discussed above. Having decided that his appointment has been properly determined by the award of three months salary in lieu of the Notice of three months, the second relief must fail.

 

In the circumstances and for the reasons given above, the appeal was dismissed on 29th May, 1990 with costs ofN500.00 assessed in favour of the respondents.

 

Appeal dismissed

 

Counsel

 

  Prince E. Tagbo Nsofor

 

For the Appellant

Charles Obishai

For the Respondents